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The legal dimension of response to intervention (RTI) has been the subject of considerable confusion. This brief article provides an overview of the prevailing misperceptions, or what may be termed the “common lore,” and the corresponding objective recitations, or the actual law, regarding RTI. Many of the misinterpretations are due to the professional norms or particular preferences of scholars from the various fields—including school psychology and developmental neuroscience—that intersect at special education. Because of the relative paucity of primary legal sources to date, the objective recitations largely consist of the policy interpretations of the U.S. Department of Education’s Office of Special Education Programs (OSEP), which is the specific administering agency for the Individuals with Disabilities Education Act (IDEA 2011), with due recognition that this source is at the outer margin of what is generally considered law (e.g., Zirkel, 2003).

11 Common Myths About RTI

The various state and local provisions for general education interventions, such as instructional support teams and school-based problem solving teams, legally qualify as RTI.

Although RTI is not limited to one specific model and although various states have legal provisions for prereferral or general education interventions, OSEP has repeatedly recited four distinguishing core characteristics of RTI: 1) high quality, research-based instruction in general education; 2) continuous progress monitoring; 3) screening for academic and behavior problems; and 4) multiple tiers of progressively more intense instruction (e.g., Memorandum to Chief State School Officers, 2008; Memorandum to State Directors of Special Education, 2011). In most cases, these other forms of general education interventions—although they are precursors to RTI—do not fulfill the systematic nature of these defining characteristics. Indeed, in many states, the state laws that provide for other such interventions are separate from, rather than coordinated with, RTI (Zirkel, 2011b).

The IDEA provides specific requirements for RTI, such as the number of tiers and the duration of the intervention at each tier.

The commentary accompanying the IDEA regulations makes clear that the intent was to avoid prescribing or endorsing any one of the various models of RTI (p. 46,653). Moreover, in this commentary (p. 46,658) and in subsequent policy interpretations concerning the duration of RTI and its interplay with the required evaluation (e.g., Questions and Answers on RTI and EIS, 2007), OSEP declined to define “an appropriate period” or “adequate progress.” Instead, consistent with the agency’s clear intent, such specific features only appear in state laws or guidelines, whether in permissive or mandatory form (Zirkel & Thomas, 2010).

The IDEA provides for the use of RTI beyond identification of students with specific learning disabilities (SLD).

It is not uncommon to find in the professional literature the view that the IDEA provides for the generic use of RTI extending well beyond SLD identification (e.g., Daves & Walker, 2012). Yet, a careful review of the IDEA legislation and regulations clearly reveals that the only reference to and recognition of the use of “a process that determines if the child responds to scientific, research-based intervention” (i.e., RTI) is limited to the identification of students with SLD (20 U.S.C. § 1414[b][6][B]; 34 C.F.R. §§ 300.307, 300.309, and 300.311). Other sources confirm this conclusion. First, OSEP has clarified that the IDEA does not address the use of an RTI model for children suspected of having disabilities other than SLD, which is a matter for states (Letter to Brekken, 2010). Second, OSEP has similarly rejected the interpretation that the reference to “behavior” in the IDEA regulation for the required observation in identifying students with SLD implies that RTI “extends to other classifications more closely connected to behavior” (Letter to Zirkel, 2011). Third, a recent review of state special education laws reveals that very few states have extended RTI beyond SLD identification, and—with the exception of Louisiana—these extensions are limited at most to one other disability classification (Zirkel, 2011b).

The IDEA requires the use of RTI.

Quite the contrary, the IDEA legislation is only permissive, not mandatory, in relevant part. More specifically, the 2004 amendments only established that in determining whether a child qualifies as having SLD, a local education agency “may” use RTI (20 U.S.C. § 1414 [b][6][B]). The 2006 regulations clarify that each state must permit RTI for SLD identification, which leaves them with the option to require or allow it, but not to prohibit it (34 C.F.R. § 300.307[a]). The other two specified choices are 1) to permit or prohibit, but not require, the traditional severe discrepancy approach, and 2) to permit the use of “other alternative research-based procedures” for determining presence of SLD in a student. Although approximately a dozen states opted for the mandatory approach, the vast majority of the separate state laws permit RTI for SLD identification, thus leaving the ultimate choice to the local level (e.g., Zirkel & Thomas, 2010).

RTI equates to or subsumes the IDEA’s required eligibility evaluation for SLD.

Quite the opposite, in the commentary accompanying the regulations (e.g., 71 Fed. Reg. pp. 46,647–46,648) and in subsequent policy interpretations (e.g., Letter to Prifitera, 2007; Letter to Zirkel, 2007b), OSEP has repeatedly emphasized that RTI, in states and local education agencies where in use, is only one component of the SLD identification process and is not, in itself, the equivalent to or replacement of the required comprehensive evaluation.

The use of RTI for SLD identification generally requires parental consent.

The requirement for parental consent would be the exception rather than the rule. More specifically, OSEP has explained that the IDEA does not require parental consent for RTI to the extent that it constitutes screening prior to the evaluation process (Letter to Torres, 2009).

The provision in the IDEA regulations for “a pattern of strengths and weaknesses” for SLD identification refers to RTI.

More specifically, the reference in the IDEA regulations is “a pattern of strengths and weaknesses in performance, achievement, or both, relative to age, State-approved grade-level standards, or intellectual development, that is determined by the group to be relevant to the identification of [SLD]” (34 C.F.R. § 300.309[a][2][ii]). OSEP has clarified that this regulatory language refers to the permissible methods other than RTI, namely, severe discrepancy and the third, research-based alternative (Letter to Zirkel, 2008). Moreover, the commentary accompanying the IDEA regulations clarified that the use of the term “intellectual development” in this provision “is consistent with the discretion provided in the Act in allowing the continued use of discrepancy models” (p. 46,651).

With or without RTI, the IDEA requires—or, alternatively, prohibits—IQ testing to determine whether the child qualifies as having SLD.

Although the IDEA’s definition of SLD includes a psychological processing component (20 U.S.C. 1402[30]), the commentary accompanying the regulations clarifies that “the Department [of Education] does not believe that an assessment of psychological or cognitive processing should be required in determining whether a child has an SLD” (71 Fed. Reg. 46,651). Thus, the IDEA does not require IQ testing for SLD identification. Conversely, however, the IDEA permits IQ testing for SLD identification, as Item 7’s reference to “intellectual development” for the severe discrepancy approach illustrates. Indeed, although an early California case prohibited the use of IQ tests for determining eligibility of minority students as having intellectual disabilities under the IDEA (Larry P. v. Riles, 1979/1984), a federal court in another jurisdiction reached the opposite conclusion (PASE v. Hannon, 1980), and a subsequent ruling in California rejected the extension of Larry P. to SLD identification of minority students (Crawford v. Honig, 1994).

For SLD identification, the IDEA requires the use of either RTI or severe discrepancy (or the third research-based alternative) alone; it does not permit a combination of these approaches.

Quite the contrary, in a policy letter interpreting the IDEA, OSEP has made clear that states may permit any combination of the three aforementioned options, or approaches, identified in the regulations (Letter to Zirkel, 2007a).

The RTI approach for identifying students with SLD will generate a spate of losing litigation concerning child find under the IDEA.

Despite dire predictions in the special education literature, major problems of RTI in terms of child find litigation (e.g., Walker & Daves, 2010; Yell, Katsiyannis, & Collins, 2010) and repeated warnings from OSEP not to use RTI to delay or deny IDEA evaluations (e.g., Memorandum to State Directors, 2012), RTI has generated relatively negligible child find litigation under the IDEA, with the outcomes being notably deferential to districts. The reason is not a time lag in implementing RTI, because most states had implemented the provision in the 2004 IDEA legislation and the 2006 IDEA regulations by 2008, with at least a dozen states opting to require RTI and the rest duly permitting it (Zirkel & Thomas, 2010). Thus far no published court decision has specifically concerned RTI and child find, and the few pertinent hearing officer decisions have been deferential to school districts (e.g., Cobb County School District, 2012; Joshua Independent School District, 2010). Interestingly, the only notable child find violations to date have been Office for Civil Rights’ letters of findings under Section 504 (e.g., Harrison School District, 2011; Polk County Public Schools, 2010) rather than court decisions under the IDEA.

Regardless of child find and the winning/losing outcome, RTI has accounted for several published court decisions that provide generalizable guidance as to the implementation of this approach to SLD identification.

Although RTI has been mandatory in at least 10 states for at least 3 years and although various local school districts have adopted it in the permissive states since the 2006 IDEA regulations, not one published court decision has yet emerged that is generalizable. The closest case was the Ninth Circuit’s decision in Michael P. v. Department of Education (2011), but as explained elsewhere (Zirkel, 2012), it is narrowly limited to the unusual status of Hawaii, in which the state education agency is also the local education agency, and the transitional period between the IDEA’s 2004 amendments and its 2006 regulations. The few other court decisions that have mentioned RTI are unpublished and entirely peripheral to RTI, with the SLD determination based instead on the severe discrepancy approach (e.g., Daniel P. v. Downingtown Area School District, 2011). The most recent of these unpublished decisions came close, to the extent that the child participated in the RTI process for reading; however, the district determined eligibility based on severe discrepancy, and the court ruled that the law did not require the district to disclose the RTI data to the parents or to use these data for IEP development (M.M. v. Lafayette School District, 2012). Finally, as specifically cited elsewhere (Zirkel, 2011a), the relatively few hearing or review officer decisions have reflected, rather than resolved, the confusion concerning RTI.